Frequently Asked Questions
There may be some things that you are unsure about, we have covered our most asked questions below.
Do I need an appointment?
This depends on the nature of your initial enquiry.
If you need a quote to buy or sell residential property, leave your details with our reception and our property team will call you for more details. Or you can contact them direct at firstname.lastname@example.org
If you are in need of a Will, Power of Attorney, advice about an estate or care fees, or other private client advice, then our Private Client Assistant Sarah will arrange an appointment for you with our specialists Chris Milne. Generally there is no charge for an initial appointment such as this and, at that appointment, you will be told how much any proposed work would cost.
If it is family law advice that you need, we offer a fixed fee no obligation appointment with our family law solicitors Louise Martin or Kim Mapperson. Call Family Secretary Sharon Moore on 01630 652405 to make the arrangement. We also offer a family law clinic on Wednesdays, where we provide 15 minutes of free guidance and information, which should help you decide the next best steps for you.
All assessment meetings for family mediation are conducted by appointment with Louise Martin, and please contact Sharon Moore to make these arrangements.
How do you charge?
At Onions & Davies Ltd, we pride ourselves in offering high level legal services at competitive rates. Please see the ‘charges’ section of our website for more details. https://www.onionsanddavies.co.uk/charges/
How can I pay?
There are various ways in which you can pay as follows:-
Although we accept cash, due to having to comply with strict money laundering regulations, we cannot accept more than £500 cash on any one matter.
We can also accept cash only if we have seen appropriate forms of identification for you.
Cheques should be made payable to Onions and Davies Ltd and, again, we need to have seen forms of identification for whoever writes the cheque.
We can accept all major credit and debit cards and, in accordance with current legislation, no charge is made for either.
Card payments can be made in person in our reception or by ringing 01630 652405.
This would be to our client account with Lloyds Bank, account number 34203260, sort code 30-97-78.
You should quote your matter reference or if you do not yet have one then your name and/or any other method of identifying you so that we can trace what matter the payment belongs to.
Please note: Our bank account details will never change and if you are ever asked to send money to an alternative account, please advise us immediately
Our preferred method of payment is by direct bank transfer or, alternatively, by card, because these are more secure.
For any other questions regarding your bill, please ask the person who is acting for you.
How do you keep my personal details secure and confidential?
The EU’s General Data Protection Regulations (GDPR) and the UK Data Protection Act 2018 both apply from 25th May 2018.
At Onions & Davies Ltd, we ensure transparency regarding our client data in terms of what information is held, how it is stored, why we hold it, and what we do with it. Click here to find out what we do with your personal information when you make contact with us or use one of our services (our ‘Privacy Notice’).
In providing you with legal advice, we will process and store your personal information, which may include special category data such as health details. We have legal and professional obligations to keep your personal information and special category data confidential. We comply with UK and EU data protection laws and with the Solicitors Regulation Authority rules on client and data confidentiality.
We are committed to keeping your personal information secure. We have put in place physical, electronic and operational policies and procedures designed to safeguard and to secure the information we collect and hold.
What information do we hold about you?
The information we hold about you may include personal information and special category data. It will typically include:
- Your name, address, phone number/s, email address/es
- Identifiers such as date of birth; National Insurance, passport, visa, driving licence numbers; photographs or other digital images
- Financial details to include bank details, mortgage account, means questionnaire
- Names of and other personal information on your family and relationships
- Details of your property
- Social media information
- Special category data including health records, Trade Union membership, political affiliations, sexuality, ethnic origin
We do not provide services directly to children or proactively collect their personal information. However, we are sometimes given information about children while handling a matter. The information in the relevant parts of this notice applies to children as well as adults.
Where has the data come from?
The data we hold will have come from:
- you in person, by telephone, by email, by SMS/text, or from your use of our website, through your initial enquiry, request for a quote, initial instructions, and when we deal with your matter; or when you subscribe to our e-newsletter
- an intermediary, such as an estate agent, financial advisor, or mediator who refers you to us
- another firm that transfers your file to us
- a client who names you as a joint party in a matter or other transaction, or as the joint owner of a property or business we are dealing with
- a client who names you as the buyer/seller of a property or business we are selling/buying for them
- a client who has named you as a witness in their matter
It is very important to ensure that we hold up to date information, so please remember to tell us about any of the following as soon as possible:
- changes of personal circumstances, such as relationship status or the birth of children
- changes of name or address
- change of contact details including mobile phone number and email address
- bank details (if relevant to the retainer)
Who is the data shared with and why?
We may share information about you:
- within the firm to enable us to deal with your matter effectively and efficiently
- with other law firms acting for other parties in the same matter
- with counsel
- with experts
- with our outsourced providers including for example our accounts function, IT consultant, risk and compliance consultant
- with the intermediary who introduced you to us, including for example a financial advisor, mortgage broker, estate agent or mediator
- with law enforcement agencies where required, for example under a Court order
This may involve them handling your personal information. The firm requires all third parties to sign a confidentiality and compliance document to confirm that your data is protected.
Please note that we will never sell your data to anyone.
What is the lawful basis for processing your data?
The legal bases we rely on to process your personal data are as follows:
- Performance of our contract with you under article 6(1)(b) GDPR
- Compliance with a legal obligation to which we are subject, under article 6(1)(c) GDPR
- Consent under article 6(1)(a) GDPR, where you have given consent to the processing of your personal data for one or more specific purposes as listed in our Consent Form. Otherwise, we rely on (1) and (2)
If the information you provide us contains special category data, such as health, religious or ethnic information, the legal basis in GDPR we rely on to process it is:
- Consent under article 9(2)(a)
- Establishment, exercise or defence of legal claims under article 9(2)(f)
Your Data Protection Rights
Under data protection law, we need to tell you about your rights. Those available to you depend on our reason for processing your information.
- Right of access – you can ask for copies of your personal information. There are some exemptions, which means you may not always receive all the information we process
- Right to rectification – you can ask us to rectify information you think is inaccurate, or incomplete
- Right to erasure – in certain circumstances, you can ask us to erase your personal information
- Restriction of processing – in certain circumstances you can ask us to restrict processing to specified activities
- Objection to processing – for example to direct marketing
- Data portability – you can ask us to transfer the information you gave us to another firm, or to give it to you
We will keep your information for only as long as necessary and in accordance with UK and EU law. The Money Laundering Regulations 2017 require us to keep evidence of your identity, with supporting documentation, for 5 years after we complete our work for you.
Your Right to Complain
We work to high standards when it comes to processing your personal information. If you have queries or concerns, please contact Louise Martin (who is responsible for Data Protection at our firm) at email@example.com and we’ll investigate and respond in accordance with our complaints procedure.
If you remain dissatisfied, you can complain about the way we process your personal information to the Information Commissioner. You should do this within three months of our response.
You can contact the Information Commissioner’s Office at: By phone: 0303 123 1113 or 01625 545745. By email or live chat on the ICO website:https://ico.org.uk/make-a-complaint/your-personal-information-concerns/. By post: Information Commissioner’s Office, Wycliffe House, Water Lane, Wilmslow, Cheshire SK9 5AF
You should also write to Louise Martin if you would like a copy of the personal information we hold about you, or to ask us to correct any inaccurate information, or to remove (where justified) your personal information from our records.
What different types of lawyer are there?
A lawyer is someone who upholds the Rule of Law and seeks justice for others:
- acting for individuals, businesses, governments, charities and trusts
- ascertaining whether a client has a legal problem and, if so, how it should be addressed, and
- is part of a process, ensuring the correct legal outcome
There are many different types of lawyer, such as:
- Legal Executive
- Licensed Conveyancer
- Licensed Probate Practitioner
- Trade Mark / Patent Attorney
- Costs Lawyer
You do not have to use a lawyer for a lot of things and various alternatives are:
- Do it yourself, websites, law for free, etc.
- Citizens Advice Bureau
- Direct Action through:
- Other public bodies, such as Trading Standards, Environmental Health Office, NHS PALS
- Trades Organisations
- Regulatory bodies, such as Ofsted or CQC
- Charity Commission
There are advantages in using a lawyer, such as:
- They know what they’re doing
- They’re qualified
- They’re experienced
- They’re insured in case things go wrong
- Peace of mind
- It lets you get on with what you are good at
Certain types of legal practice involve reserved activities, including:
- The right to appear before and address a court and examine witnesses
- The issuing, commencement, prosecution and defence of proceedings
- The preparation of Land Registry and Court documents
- The preparation of Probate papers
- The activities of a Notary
- The administration of Oaths
Reserved activities must be carried out by a person or organisation who is regulated by official and professional bodies. Solicitors are lawyers who are authorised to carry out reserved and unreserved activities. Some lawyers, such as Will writers, McKenzie Friends, Charities, Trade Unions and Mediators are unregulated and so are unable to carry out reserved activities.
Solicitors are one of the most highly regulated industries because it is important that our clients are properly protected. This protection is provided by:
- Solicitors Regulation Authority – the regulators of our profession
- Solicitors Accounts Rules – how we should look after our clients money
- Solicitors Code of Conduct – how we should conduct ourselves professionally and in our personal lives
- Professional Indemnity Insurance – we have to carry insurance that will pay out if we make a mistake
- Practising Certificate – we have to have one of these and renew it annually in order to practise
- CPD – we have to receive a number of hours relevant training every year
At Onions & Davies, we are a firm of solicitors offering high street legal services. You can find our details registered with the SRA athttp://www.sra.org.uk/consumers/using-solicitor/law-firm-search.page
We believe, not only in meeting the minimum requirements listed above but in providing the specialist, quality advice that comes through experience and qualifications. We have members of STEP (the Society of Trust and Estate Practitioners https://www.step.org/), Resolutionhttp://www.resolution.org.uk/, The Institute of Paralegals https://theiop.org/ and Solicitors For the Elderly https://sfe.legal/, including Chris Milne holding the Older Client Care in Practice award and being a member of specialist advice panels. In addition, for the seventh year running, we have been awarded the Law Society’s Lexcel quality mark https://www.lawsociety.org.uk/support-services/accreditation/lexcel/.
We have solicitors working in our property, private client and family law teams and a paralegal assisting in our private client team.
We believe that we can provide excellent advice at a reasonable cost, to individuals in difficult circumstances, and we truly care about our clients.
If you need legal advice, call us on 01630 652405, to see how we might help you.
Why do I have to produce identification documents?
As solicitors we have to comply with strict legislation on anti-money laundering and identity checks as well as the source of funds for any purchase. It is essential we can confirm the client is the person lawfully entitled to sell a property and verify identity to any mortgage lender. We are unable to carry out any work until these measures have been completed.
Buying property: Why do I need to pay for searches?
At the outset of any purchase we need to make check with various organisations to ensure there are no onerous matters on record which may affect your decision to purchase or affect a mortgage lender’s decision to accept the property as valuable security for any loan. Therefore, we will make searches of the local authority, water and sewage undertakers, coal authority and environmental agencies. These searches will highlight important information such as whether the access road to the property is public highway, if works to the property are compliant with planning and building regulation requirements, if the property benefits from mains water and public sewers, that there are no mine entries within or near the boundaries, or if there are land contamination issues, flood risks and proximity to wind turbines and telephone masts.
Buying property: I have a Help to Buy ISA. When do I get my bonus?
If you are purchasing with the assistance of a Help to Buy ISA bonus you must make your solicitor aware of this at the outset. There are formalities the solicitor must comply with to ensure the bonus is available for completion. If the solicitor is only made aware of this late in the transaction there could be delays in completing the purchase. Once a completion date is known the solicitor will ask you to close your Help to Buy ISA account. The bank will provide you with a closing statement. You need to hand this to your solicitor as soon as possible. They will prepare a declaration for you to sign confirming you are eligible for the bonus. Both closing statement and declaration are then submitted by your solicitor to the government agency requesting the bonus is released prior to completion. This bonus will not be paid direct to you but to your solicitor to use for the purchase. Your solicitor will provide you with a completion statement setting out how much they will need from you in order to complete the purchase. The statement will take into account the fact the bonus will be received by them therefore reducing the amount required from you.
Buying property: What is exchange of contracts?
Once we have received the results of all the searches and satisfactory replies to any enquiries we may have raised with the seller’s solicitors, we will report to you on the results and arrange a time to sign the contract papers and discuss completion dates. You will not be contractually bound to buy or sell a property when you sign the contract. This takes place between the respective solicitors and is done when everyone in the transaction, and chain of there is one, is ready to proceed and has agreed a completion date. When you exchange contracts on a purchase you will be required to pay a deposit, usually 10% of the purchase price. You do not exchange until you are ready and able to complete as if you try to withdraw from the purchase after exchange you will forfeit the deposit paid.
Buying or selling property: What is completion?
When contracts are exchanged a completion date is set. If you are selling, this is the date you must vacate the property and hand the keys over to the buyers. You usually have until about 1,00pm to do this. You will usually take final meter reading to enable you to close your utility company accounts. Keys are dropped off at the estate agents for collection by the buyers. If you are purchasing, completion is when you take possession of the property. Once the seller’s solicitor has confirmed receipt of the purchase money they will authorise the estate agents to hand the keys to you. This is called “key release”. Completion is also the day your mortgage commences, if you are having one. You will need to liaise direct with your lender as to when the first mortgage payment is taken.
Buying or selling property: What are title deeds?
Title deeds demonstrate ownership of land or property, as well as highlighting personal and restrictive covenants and setting out registered charges, such as a mortgage.
The record is kept at the Land Registry and a search of the register can be carried out and copies of the register and title plan can be downloaded at a small cost, in a matter of a few minutes.
Some people have title deeds in their homes, or perhaps stored with the bank holding the mortgage. Frequently, these deeds are pre-registration deeds and documents because, further to compulsory registration from the 1990’s, all records became electronic. You should pass any such documents to your solicitor when buying or selling property, even if you consider these deeds and documents to be obsolete.
However, there remains a small pocket of land ownership in the UK which is known as ‘unregistered’ land or property. The owners may have escaped compulsory registration if the property has been in their ownership for an extended number of years. Quite often, it is not until somebody has died that we find such unregistered land or properties.
The title deeds for unregistered land are of vital importance, as they record the chain of ownership from which the property can be sold or transferred (and registered with the Land Registry). You should ensure that your solicitor has all of these deeds and documents when giving instructions to sell or transfer the property.
If you are selling, buying or re-mortgaging residential property, or need advice about other residential property transactions, speak to our property law specialist, David Williams, on 01630 652405 or email David at firstname.lastname@example.org
Buying or selling property: When do I get the deeds to the property?
Following completion there is nothing else for you to do other than move in to your new home. However, your solicitor will still have tasks to complete including payment of any stamp duty and registering your purchase with HM Land Registry. Once the application to HM Land registry has been completed a new version of the registers will be produced showing you as the new owners and, if you have one, confirming your lender’s mortgage against the property. Your solicitor will then send you a copy of these register together with any original documents supplied by the seller’s solicitor on completion e.g. building regulation certificates, gas service reports and guarantees. It is rare that any old deeds will be provided as most properties are registered and the deeds will have been destroyed.
Buying or selling property: Do I have to use a solicitor?
If you are selling a house subject to a mortgage or buying with the assistance of a mortgage you will have to use a solicitor. The mortgage lender and solicitor for the other party will insist on this. If there is no mortgage involvement then technically you can act in person. However, we would advise in the strongest possible terms that you do not do this and that you instruct a solicitor, especially if purchasing. The purchase of a property is made on the basis of Caveat Emptor (or “let the buyer beware”). It is incumbent upon the purchaser to make all enquires, searches and investigations that would be made by any prudent purchaser. Unless the seller has made any direct misrepresentations you will have no redress against them should any detrimental issue come to light following completion. The legal process for the purchase of a property is complex and should be handled by a competent professional. The cost of using a solicitor is small compared to the potential financial losses that can be incurred if an important point is missed.
Family Law FAQ’s
Family Law: Do we offer fixed fee appointments?
Yes we do, there is a fixed costs for a family law initial consultation. This is a no obligation appointment of up to an hour and can be done remotely over the telephone or video platform, or face to face at our offices. Call Sharon in the Family Team for further details.
Family Law: When can I apply for a divorce?
The first requirement for you to make a divorce application to the court is that you have been married to your spouse for at least a year, and you can only present an application at the point you have been married for a year. You will need your original or a certified copy of your marriage certificate to provide to the court when making your application.
Family Law: How do I get a divorce?
A divorce is obtained by first making an Application for Divorce and file it at court or online after which it will be issued. The fee for doing this is £550.00 however there are exemptions available in certain circumstances. Your spouse will then be provided with your application from the court with an acknowledgement of service which requires a response from them.
Family Law: What is the difference between a Decree Nisi and Decree Absolute?
A Decree Nisi is the interim Decree of divorce. This is pronounced when the court is satisfied that you have met the legal and procedural requirements to obtain a divorce. A Decree Nisi however does not yet mean you are divorced. You are required to wait a period of 6 weeks and 1 day after the Decree Nisi has been pronounced before making an application for Decree Absolute. The Decree Absolute dissolves the marriage and you are divorced.
Family Law: Is a divorce the same for civil partnerships?
The procedure for a divorce is the same for dissolving a marriage and a civil partnership. The terminology is however different. Instead of granting a Decree Nisi the court will grant a Conditional Order. You must have met the legal and procedural requirements before a court will do so. Instead of granting a Decree Absolute the court will grant a Final Order. It is upon the Final Order that the civil partnership is dissolved.
Family Law: What are the grounds for divorce?
Although it is hoped that we will reach a point where we have a ‘no fault’ based divorce system in England and Wales, this is still being dealt with through parliament. Currently you have to show that your marriage has irretrievably broken down by being able to prove one of five facts.
You will need to demonstrate that your marriage has irretrievably broken down, by being able to prove one of the following five facts:
- Your spouse has committed adultery
- Your spouse has demonstrated unreasonable behaviour
- Your spouse has left/deserted you for a continuous period of 2 years
- You have been separated for at least 2 years and you both agree to the divorce
- You have been separated for at least 5 years – it doesn’t matter if your partner doesn’t agree to the divorce
Family Law: How long will my divorce take?
Each case is different but as a rough guide a divorce, without resolving financial matters, usually takes 12 months. It is common to wait to resolve financial matters before applying for Decree Absolute as often it is best to finalise the financial aspects of the divorce first before applying for your divorce to be made final.
Family Law: Does a Decree Absolute mean the matrimonial finances are dealt with too?
No! You should take legal advice as to the financial matters arising from your divorce.
Family Law: How do we sort out our matrimonial assets?
There are a number of ways in which you can deal with the division of matrimonial assets including pension. By agreement with your former spouse. A solicitor can assist in preparing and submitting the consent documents to ensure this closes all financial claims you may have against the other. Family mediation is also a way to discuss and decide how to divide matrimonial assets. Court proceedings are an option to determine how assets should be divided. Every one’s circumstances are different, and a solicitor will be able to help you determine the best option for you.
Private Client FAQ’s
Private Client: Care Fees Funding - If I need care, how will that be paid for?
Payment of your care fees, whether you are receiving that care in your own home, or in a care home, can be made either by you, your local authority, your health authority, members of your family or any combination of those. How this is decided depends upon the type of care you need, your financial means and the type of home you go into. It is highly advisable to plan in advance for the possibility of going into care. There will be ways in which you can arrange your finances beforehand, protect certain assets and put documents in place that will make the whole process so much easier to deal with.
At Onions & Davies, we are experienced in helping clients plan, sometimes many years in advance, advising them at the point of going into care and also representing them if they wish to challenge the assessment process. We are members of Solicitors For the Elderly, a national organisation of lawyers who specialise in and are experienced in this type of law. With the law in this area being very complicated and care costs averaging between £40,000 and £60,000 per year, it is essential to be properly advised and prepared.
Private Client: Court of Protection Deputyship - What is Court of Protection Deputyship?
When a person lacks the mental capacity to make decisions about their own affairs, a Deputy can be appointed by the Court of Protection to make such decisions on their behalf. This may be a friend, a relative or a professional person. In the past, these used to be known as Receivers.
It is generally preferable for a person’s affairs to be dealt with under the terms of an Enduring or Lasting Power of Attorney, but where a person has not made either of these, and does not have the mental capacity to be able to do so, an application for a Deputy to be appointed should be made.
Private Client: Court of Protection Deputyship - What Powers does a Deputy have?
The Court will set out the extent of a Deputy’s powers, which can apply to any area in which the person could have acted or made decisions if they had had the capacity to do so themselves. This may be in respect of financial matters, personal welfare issues, consent to medical treatment and social care interventions. The powers given will depend on the needs of the person whom the Deputy has been appointed to assist.
Decisions which Deputies commonly have to make can involve; buying and selling the person’s property, operating bank accounts and investing savings, paying for private medical treatment and care home fees, dealing with tax affairs, deciding where a person lives and whom they live with, day to day decisions such as what the person eats, wears, etc. and can also include dealing with the person’s medical records and treatment.
Private Client: Court of Protection Deputyship - What Roles and Responsibilities does a Deputy have?
Deputies have a responsibility and a duty of care to act in the best interests of the person for whom they are making decisions. They must pay regard to the principles of the Mental Health Act and the related Code of Practice. Before making a decision, it is important for Deputies to consider whether the person they are assisting could make that decision for themselves with some support or under certain circumstances. They should involve the person who lacks capacity as much as possible in any act or decision and consider their values, views, beliefs, wishes and any feelings that they may have expressed in the past. If possible, the Deputy should consult with others such as the family and friends about their views on the person’s best interests.
Deputies are not expected to be experts in assessing capacity. However, when making a decision on behalf of someone else, they must reasonably believe that the person lacks the capacity required to make that decision themselves or to give consent at the time it was needed. Deputies are permitted to employ professionals such as solicitors, accountants and regulated financial advisers to assist them in carrying out their role as a Deputy. They are not permitted however to delegate their responsibilities to another person.
Private Client: Court of Protection Deputyship - Are the actions of a Deputy supervised?
Deputies’ actions are supervised by the Office of the Public Guardian. Individual assessments will be made in each case, to determine the appropriate level of supervision and cases are reviewed regularly. The level of supervision will depend largely on the complexity and value of a person’s estate and the relationship between the Deputy and the person for whom they are acting. The Office of the Public Guardian will advise Deputies individually of what is required from them. This may include providing reports covering all decisions made on behalf of the person lacking capacity, along with receipts for money spent, bank statements and correspondence, letters and reports from health agencies or social services.
It is also possible that a Court of Protection Visitor may visit both the Deputy and the person whose affairs they are managing, in order to ensure that the Deputyship is working for both parties and that the decisions being made are in the best interests of that person. The Office of the Public Guardian may also contact others with an interest in the person’s welfare.
Private Client: Court of Protection Deputyship - How do I become appointed as a Deputy?
For someone to be appointed as a Deputy, they must submit a number of forms to the Court of Protection. The type of forms required will depend on what the Court is being asked to decide. They will generally ask for information in respect of both the individual who lacks mental capacity and the applicant, in particular with regard to their personal circumstances and finances. At Onions & Davies, we have many years’ experience of completing and submitting these forms and we will be able to give you advice if you are unsure about any parts of the forms. A number of people interested in the welfare of the person who lacks mental capacity will be notified of the application and they will be able to give the Court their views on the matter if they wish to do so. The Court will then assess the applicant’s suitability to act as Deputy and if the application is successful, they will issue an Order setting out the extent of the Deputy’s powers.
Private Client: Deputyship Order for Financial Affairs - I have a Deputyship order for financial affairs for a family member, does this automatically allow me to sell a property?
Unfortunately, unless this was requested in the original application for the Deputyship Order then you will need to make a further application to the Court of Protection to give authority for you to sell the property of P.
Private Client: Wills & Probate - Why should I make a Will?
It is so easy to put off making a Will but it is the only mechanism open to you to ensure that your wishes as to the disposal of your property on your death are properly expressed and followed through.
If you die without making a Will, the law imposes its own rules (Intestacy) which could mean that relatives or others inherit in an unintended way. A Will enables you to put the person (or persons) of your choice in control of your affairs after your death. If you do not make a Will the person who ends up dealing with your estate could be unsuitable.
Private Client: Wills & Probate - Will my estate have to pay inheritance tax on my death?
Not everyone pays Inheritance Tax. It is only due if your estate – including any assets held in trust and gifts made within seven years of death – is valued over the current Inheritance Tax threshold (£325,000 or up to £500,000 if you have a property in which you have lived that is being left to your descendants). IHT is payable at 40% on the amount over this threshold.
IHT planning is an important consideration, and we can advise you on the legal aspects of this. To ensure that you are properly advised financially, we will work alongside your existing adviser or introduce you to an adviser who specialises in this work, if you do not have your own.
If your interest is in limiting the amount of tax you and your beneficiaries will pay to the Government, it is important to utilise the legal and financial frameworks available to you to achieve this.
Private Client: Wills & Probate - Do I need an Executor in my Will?
Yes. Your Executor has the responsibility for dealing with your estate in accordance with your Will. Your Executor has to comply with the formalities and will probably need to obtain a Grant of Probate from the Probate Registry. You may choose to have more than one Executor. Where your beneficiaries include children under 18 years or someone incapable of looking after their own affairs, you will need at least two Trustees. Executors and the Trustees are sometimes the same people.
You may appoint your husband or wife, or one of your children as Executors, as they should be someone you trust, someone you think would be capable of dealing with this kind of task. It would be a good idea to find out whether they would be willing to act. Someone appointed as Executor in a Will has the right to renounce that appointment if they do not wish to act. Remember, being an Executor does not stop that person benefiting under the Will.
The Directors of Onions & Davies are generally willing to accept appointment, either on their own account or jointly with a named person. We would make a charge for work carried out in our capacity as Executors, in the same way as we would if Executors asked us to act on their behalf. The advantages of having professional Executors are that you can be sure that they are independent, having no conflict of interests and also that they are legally accountable for the proper administration of your estate.
Private Client: Wills & Probate - What will happen to my minor children if I die?
For parents of young children, it is perhaps even more vital to make a Will, as it allows an opportunity to appoint Guardians to act if your spouse/civil partner were to die before you do. If you do not have a Will, other family members may decide who takes on this role and this is not always satisfactory. The choice of Guardian, like any important decision, regarding your children’s welfare, should be made by you as the parents.
Appointing a Guardian is straightforward, but it must be done correctly. We will make a note of your wishes by including a special clause in your Will. You can, if you wish, include substitutes in case your first choice of Guardian is unable to act. You can also ensure that money is made available to meet your children’s financial needs as they grow up. If you would like to appoint Guardians, please discuss with them their willingness to be appointed.
Private Client: Wills & Probate - How do I make provision for my unmarried partner from my estate when I die?
If you are unmarried or not in a Civil Partnership, you cannot leave your property to your partner, unless you make a Will. Where the Intestacy rules apply, the surviving partner may have to go to Court to apply for a share of the estate. To be eligible, the surviving partner would have to be able to show some financial dependence on the deceased person and prove a closeness of relationship with him or her over a number of years.
In the eyes of the law, a couple who are living together have none of the automatic rights of a married or civil partnership couple when it comes to sorting out a deceased partner’s estate. For example, the legal beneficiaries may legally enforce the sale of the property occupied by the surviving partner.
We often see long-running family disputes surface in these circumstances, which can be tremendously difficult, traumatic and costly for the families and former partners and damaging to long term relationships, even after a resolution is achieved.
Private Client: Wills & Probate - What happens when I die if I haven’t made a Will?
If you don’t have a Will, there are rules for deciding who inherits your assets, depending on your personal circumstances.
The beneficiaries will comprise only a surviving spouse (or civil partner) or people who are blood-related to you. Even a surviving spouse may not receive everything you leave – it depends on whether or not you leave children as well and also on the value of your estate.
It will take longer to sort out your affairs if you don’t have a Will. This could mean extra distress for your relatives and dependents until they can draw money from your estate.
Private Client: Powers of Attorney - What is a Lasting Power of Attorney?
There is a procedure whereby you can appoint someone to look after your affairs if you cannot do so yourself, for example as a result of Alzheimer’s disease or stroke or brain damage following an accident or because you become frail with advancing years. Very real problems can and do arise in sorting out the financial and property affairs of people in this situation. Making a Lasting Power of Attorney is an effective form of insurance that, if this situation should arise in your own life, there will be minimal complications and the person of your choice will be handling your affairs.
LPA’s can cover not only property and financial affairs but also health and welfare issues. It is often sensible to consider making an LPA at the same time as making a Will.
It also makes your Executors’ job easier and the administration of your estate less involved, if you have had attorneys helping with your finances before you die.
Private Client: Wills & Probate - How do lifetime gifts affect Inheritance Tax?
Not all gifts have their values added back into the estate; certain gifts are exempt.
Each individual is allowed to give away certain amounts every year, completely free of tax. These include £3,000 as a personal allowance, plus any number of gifts of £250 to different people, plus wedding gifts of £1,000, £2,500 or £5,000, depending on how you are related to the person getting married.
All gifts, of whatever value (on death or during your lifetime) to spouses, civil partners or charities are free of tax.
All gifts out of surplus income are also exempt. Making use of this is a very good way of reducing the eventual inheritance tax bill, but your executors will have to show that the income was surplus to your requirements after all expenditure has been paid.
Gifts can be made to individuals or to trusts, but they must be truly given away. If you try to reserve any present or future benefit in what you are giving away, HMRC will treat you as not having given it away at all.
Private Client: Wills & Probate - How can I use a Will to save tax?
Any gifts to charity or to surviving spouses or civil partners are free of tax. Also, every individual has their own nil rate band threshold. In addition, certain assets (business and farming assets for example) attract reliefs from tax. It does not make sense for assets or amounts that would not produce a tax bill to be given to beneficiaries who are tax-exempt beneficiaries. For example, if business assets are given to a surviving spouse, two tax reliefs apply and so one is wasted.
It would be better for assets that attract tax relief to be given to beneficiaries who do not. The correct wording in a Will can arrange this. However, you may want your spouse to inherit your business (for example) and so advice needs to be taken as to how you can arrange this whilst still making best use of all the tax reliefs available.
Gifts can be made to individuals or to trusts, but they must be truly given away. If you try to reserve any present or future benefit in what you are giving away, HMRC will treat you as not having given it away at all.
Private Client: Wills & Probate - What are Nil Rate Band Discretionary Trusts?
Prior to October 2007, it was common for spouses to leave an amount up to their nil rate band threshold to a trust. This was on the basis that it was wasting the nil rate band because of the spouse exemption.
The reason a trust was used was that if this amount was left to an individual, it might well leave the surviving spouse short of money. A trust could be used to keep the money out of the surviving spouse’s estate, whilst providing for him or her if needed.
After October 2007, there are a number of reasons, apart from tax saving, why trusts should be used.
- It can be useful to have the flexibility of a separate pot of money to provide for unforeseen circumstances
- Money in a discretionary trust is protected if the surviving spouse or civil partner goes into care
- You may not want your surviving spouse or civil partner to have all of your estate
- You may want someone to control that money, where you have divorcing, wayward or mentally incapable beneficiaries
In addition, trusts like these can still save inheritance tax. At the moment, it is highly likely that the growth over time in the value of the amount in the trust will be greater than the increase in the value of the nil rate band threshold. That growth would be outside the survivor’s estate and so would not be taxable on his or her death.
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